0:00 Who are you?
0:03 >> [music]
0:03 >> And where are you going? What do you want?
0:15 >> Hello and welcome to Trust & Estates weekly. I'm your host Kevin Bemel and I'm here every Monday at 10:00 a.m. Pacific time to talk about estate planning and probate and trust administration and issues related to being part of a multi-family office. Uh both from the standpoint of professionals like myself and my guest Kelly who you may recognize if you're a long-time watcher of the show. But also for those of you who you don't do this full-time. Maybe you were appointed as the executor of your parents' will and now you're trying to figure out this
0:51 seemingly ridiculously complex process. So hopefully we'll be able to give you some information, some guidance that'll help you get through it. more easily. So today I am really happy to welcome back Kelly Wade. Kelly was on I think probably about 18 months ago but she is as you can see on her title caption there a lawyer who specializes in estate and copyright law. And this is a subject near and dear to my heart for any of you who've Googled me and found
1:26 things like horror brunch
1:29 >> [laughter]
1:29 >> from from my you know misbegotten younger days but you know IP copyrights and such are a very important part of many estates and so really happy Kelly to welcome you back so that we can you know continue to dig into this topic. So thanks for coming on the show.
1:53 >> Absolutely. Thanks for inviting me back. I appreciate it.
1:57 >> Yeah. So, you know, for for for people who didn't see you before, if you would just take a at least a couple of moments and give a little bit about your background, so people can understand your expertise and and get to know you just a little bit.
2:13 >> Of course. So, my name's Kelly Way. I've been an attorney licensed with the California bar since about 2010. And I have been practicing estate planning, copyright, and trademark law as a sole practitioner since 2015. So, that's about 10 11 years now that I have been doing both and specializing in that crossover point where copyrights and trademarks and estate planning all intersect. And that's, you know, my area of specialty and that's what we're here to talk about today.
2:48 >> Yeah. Good. Good. And you're based up in Northern California, if memory serves, right?
2:54 >> Yes, I'm up in Walnut Creek.
2:56 >> Walnut Creek. Okay. But, of course, you practice wherever uh well, because you practice in California, right? Because that's that's where you're admitted to the bar.
3:05 >> Yeah, my estate planning practice, uh you need to be a California resident or have some kind of a tie to California for me to help you with estate planning matters, but copyrights and trademarks, those are federal laws. So, I can help you with copyright or trademark work anywhere in the country.
3:21 >> Okay, great. So, that's a great distinction and uh for people who are listening or watching. So, so, Kelly, start out, if you would, talk about this nexus between copyrights, trademarks, and the estate planning issues. And and and and then then we maybe we can dive into them, you know, more deeply as we progress through the show.
3:47 >> Absolutely. So, copyrights last for life of the author plus 70 years. So, they are designed to outlive their owners. And trademarks, they last for as long as you keep using them in commerce. So, they could last indefinitely as long as they're still in use. So, for both of these, if they're actually making money, if they have value, then it makes sense to have a plan for how can they continue to have value and bring in income once the person who made them is no longer the person at the wheel running the
4:23 show. So, that's really the crossover area. So, for the original owners, the estate planners, the issue is how do you incorporate that into your will or trust? Who is that going to go to? Is it going to go directly to them or would you rather have it be managed by somebody with the income going to a beneficiary? And for the other side of the coin, for people who are the administrators of an estate, you know, if there is copyrights or trademarks in that estate, they got to figure out what to do with them. Where
4:58 do they go? Who is the person who is the rightful owner of these now? And how do you effectively transfer them to the new rightful owners?
5:10 >> Okay. So, I think one of the first, um especially for people administrating estates, how do they even know if you know, if a a copyright or a trademark that potentially has value, how would they even know that it exists?
5:30 >> That can be really tough if the owner, the decedent, has not already left some kind of a trail like a portfolio or documentation or specifically mentioning it in their will and trust. Absent those things, I mean, most people are probably not going to be checking the USPTO or the Copyright Office to see if there's a registration if there's no reason to believe that they've done one of those things. So, I think the most likely way they're going to find out without some kind of documentation from the decedent is those royalty checks coming in.
6:06 >> Mhm. Okay. Um what would be cuz I'm thinking about my own practice now, what would be a clue besides royalty checks that maybe I ought to check, you know, the the federal registry. You you you it had some additional initials you mentioned a moment ago.
6:27 >> Yeah, so for a trademark, a trademark is used in business to identify the source of a product or service. So, if they don't have a business, then they probably don't have a trademark.
6:39 >> Okay.
6:40 >> So, the trademark is not terribly difficult. If they didn't have a business that they owned at the time that they died, there's not really any need to look for a trademark registration.
6:50 >> Mhm.
6:50 >> If it's a copyright, they would have to have created something. You know, they would have had to have written a book or made an art piece or a movie. So, there would be some form of creative expression that's entitled to copyright protection. So, if you know that the decedent was an author or an artist or movie director or what have you, that they could make creative of works, then that would be a good indicator that you should check to see if they ever registered those works with the Copyright Office.
7:21 >> Gotcha. Gotcha. And so, let's let's let's take the trademark example first. I think a lot of businesses today, you know, just as as part of the marketing so social media presence, you know, they'll have a logo. I [clears throat] think I glanced up to see my logo is usually up in the screen. I must have deleted it off for some reason. I was saying like, I have a logo for my business, but I wouldn't have And And it presumably it stands as a trademark. Um, I've never, you know, registered it with the trademark office. Um,
7:56 is there a way of knowing, let's say, you know, there is a business in an estate, um, is there a way of knowing, you know, whether a trademark has value? What would you recommend as kind of, you know, due diligence, um, you know, in it so that, you know, an administrator is doing a thorough job and not not overlooking something?
8:21 >> So, with a trademark, it does not have to be registered in order for it to be a trademark. You get the most protection with a federal registration, but you could do a state registration or no registration at all. You will still have trademark protection, it just won't be as extensive. And as you said, a trademark, again, it's a source identifier. So, that could be your logo, it could be your company name, it could be the product name. Uh, but those sorts of things that they have a business, those things would be
8:56 considered trademarks. So, one thing that you could do is you could be looking at their marketing materials and seeing if they're using the TM, which means it's a trademark, but it's not registered. Versus the R in a circle means that they have registered it with the US Patent and Trademark Office, the USPTO.
9:18 >> Mhm. Okay.
9:20 >> [snorts]
9:20 >> And And then, you know, once let's say, you know, a trademark is, you know, identified, um, you know, again, from an estate planning perspective, then hopefully it's included What What What should one include in an estate plan um in terms of um you know, that that trademark. I I know for me um I I I I've never made a conscious decision as to whether you know, me as an individual owns
9:55 you know, for example, the logo to my business um as opposed to, for example, the IP that is the show. That's owned by my corporation. That's you know, one one can see the you know, the copyright uh you know, um information going by on the bottom of the screen, right? You know. From a trademark perspective what what what would one need to do from a planning standpoint uh to make sure that, you know, it was um you know, prop- properly being properly
10:30 dealt with, I guess, is the best way to put it.
10:32 >> So, trademarks, again, they're used in connection with the sale of a product or a service. So, they don't really have much value if they're not connected to the business that is selling the product or service. So, from a planning perspective, uh I would say that the the trademarks should go wherever the business goes. So, if you're planning to liquidate, then yeah, the the trademarks could be sold uh to somebody else who wants to have the goodwill that's associated with that brand.
11:07 Uh if you're not planning to liquidate, if you're saying like, "My second child has been in the business for the last 15 years, so I'm giving them the business." Then I would suggest that you probably want to specifically say, you know, including all of the trademark's goodwill and associated intellectual property uh that goes with the business or something along those lines. So, that's how I do it from a planning perspective is specifically call out the IP that's connected with the business and have it go wherever the business goes.
11:40 >> Okay. So, you know what as you're talking about this um a situation came to mind. I I don't know if you're familiar with um how the uh the pre- the predecessor to the current Walt Disney Company was organized, but there was Walt Disney Productions which owned the movie studio, the theme parks and such. But, the name Walt Disney is in that sort of scrolly, you know, logoish way was actually owned by a company called Retlaw which was Walter spelled backwards, right? And
12:16 Retlaw was owned by Walt Disney's family whereas Walt Disney Productions was a publicly traded company. So, i- i- in essence they weren't owned by, you know, the same company. And so, then when Walt Disney died, his his widow Lillian and I think their two children were the owners of at least some of the IP, some of these trademarks, whereas, you know, Walt Disney and Walt Disney Productions I think was paying them a fee, you know, to continue to use them.
12:53 So, I'm just I'm curious to get your take on, you know, that kind of arrangement. It would seem to me on some level it may be different with a publicly traded company, but if you've got a family business on the one hand that's going to go to say, you know, child two, but child one is going to own the, you know, [snorts] the trademarks, you've set up conflict between, you know, your your children or something like that.
13:21 >> Potentially, yes. So, somebody like the Walt Disney Company, I could see why that would make sense because it gives the family a limited sort of control over the company in the sense that if you want to use this IP, if you want to license from us, we can put conditions on that, but at the same time needing to be aware that if they put too many conditions on it, the company could always say we don't need the IP that badly.
13:49 >> [snorts]
13:49 >> Mhm.
13:50 >> Uh so, there is that aspect of it, but as you said, it could also cause conflict if they're not getting along and they're not willing to work together, that could be a nightmare situation or like I said, it could lead to the point where the company owner decides that they don't need the trademark and it's not worth the hassle of trying to work with the other person who owns the intellectual property.
14:12 >> Mhm. So, so as a lawyer, what are you going to be looking at when you're advising your clients on, you know, that that kind of you know, the the arrangements vis-a-vis what's going to happen with, you know, trademarks in a company, you know, post, you know, death of of the, you know, the founder or the owner.
14:36 >> I think it's the same thing that I would say if it were a copyright question. The first thing to ask is what are your goals? What is it that you are looking to accomplish here? Uh like with the copyrights, I was uh recently interviewed on another podcast where the host was actually advocating that you give up all your rights uh when you die because then it would be freely available and widely disseminated.
15:06 >> Mhm.
15:06 >> And I and my response was if that is your goal, if you want it to if you want your book, for example, to be read by as wide an audience as you can possibly reach, then sure. If you don't care about the money, you can go ahead and you can do something that would accomplish that purpose, but if your goal is to maximize your revenue and keep the profits coming in for as long as possible, then that is a terrible idea.
15:34 >> [laughter]
15:34 >> So, it really comes down to what is your goal and are you willing to accept the negative consequences that come with achieving that goal? And the same would be true with the trademarks where you need to say what is your goal with the business and with the IP? Are you looking to have a source of revenue for your children? Are you looking to have your company be your legacy? Maybe it has nothing to do with the kids as long as the company lives on. Those are the kinds of things that you need to decide and once you know what you want the outcome to be, then we can talk about
16:10 how to set things up to get to that outcome.
16:13 >> Oh, yeah. Yeah, that that definitely makes sense. Let's take a quick break and we'll come back for some more.
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17:05 >> Okay, so I I I I I think we we we've kind of nailed down the the issues of of a trademark. So, switching over to copyrights, um I I I I have to say I'm a little bit of at first I was a little bit astounded about the idea of well, just, you know, put it in the public domain when you die. I don't know. I you know, that just seems like a a very crazy idea to me, but I I
17:34 >> It surprised me as well, but again it went back to well, is that your goal? Do you not care about the money? If you don't care about the money, then sure, why not? But you know, that goes back to what is your goal Hm.
17:46 >> Yeah, I I mean, you know, presumably someone has a widow or widower, you know, that they're leaving behind and it's like it's sort of like saying, don't care about you.
17:56 >> [laughter]
18:00 >> Circumstances are also important in those kinds of situations.
18:05 >> [laughter]
18:06 >> So, I I I do have to ask, I didn't I thought it was automatic that [snorts] the copyright um protection extended 70 years beyond the you know, the death of the uh you know, the producer. So, how would one even essentially shortcut that process and put something in in in the public domain when they're still presumably, you know, 70 years to go?
18:37 >> You are correct. There is no way mechanism that I know of to put things in the public domain earlier than that 70-year cap. So, you wouldn't be able to literally give up your copyright, but there are other ways that you could do it. For example, you could attach a Creative Commons license to it. Uh that would basically be telling everybody that they are free to use it under certain circumstances. And maybe one or two other things that you could do, but essentially, it's not that you are terminating the copyright, it's more that you are letting people know you're
19:13 choosing not to enforce the rights.
19:15 >> Okay, so this is kind of like pictures that are on Wikipedia and things like that often times they'll have a that that type of license and they'll say, as long as you give me attribution, you can use it, etc. etc. So.
19:29 >> Yeah, yeah, exactly. Or or to give I'll admit it's a more nerdy example, but I like to
19:36 >> Wait, wait, Kelly, are you a nerd?
19:39 >> [laughter]
19:39 >> Yes. Uh but yeah, so I I like to knit and there is a forum for knitters where that you can get patterns off of and I noticed there was one person who had made a lot of very beautiful patterns and when I looked into it a little bit, this person had passed away and the family had chosen to make all of those patterns free and available to everybody. They just stopped asking for a fee in order for you to download the pattern.
20:05 >> Oh, okay.
20:06 >> So something like that is something that you could do where technically there is still a copyright, but [clears throat] you're not enforcing it and you're openly making it available to everybody.
20:14 >> Okay. You know what? I I think yeah, that that makes a lot of sense. I mean, knitting is kind of a community and as a way to sort of give a legacy to somebody who was part of the community, okay, you know, they're they're not with us anymore as a remembrance to them, you know, we're going to do this thing. So, okay. All right, yeah, that makes sense. So talk if you would about what you see as being um so well let me let me kind of set it up. So let's say somebody um you know, has
20:50 written some books or maybe they've, you know, composed some music or or lyrics or so they have some uh you know, some creative material. Um what what would be the next what would be the steps that that one should consider first from a planning standpoint?
21:14 >> From a planning standpoint, I would say that again, you want to decide what's going to happen to these. Are they valuable enough in terms of economic value or in terms of sentimental value for it for it to be worth it to take those extra steps to protect and preserve it. And if they are, then it's deciding in either your will or your trust, again, who is it going to go to? Are they going to get it outright or am I going to have somebody else managing it and giving the income to the people that I want to
21:50 benefit?
21:51 >> So So when you say the steps to to protect it, what what are those steps?
21:58 >> So the first step for copyrights would be to register with the copyright office.
22:03 >> Okay.
22:03 >> And then from there, you would just be on the lookout for infringers. I mean, if your book is unpublished, then you don't really have to do any a lot of work because nobody really has access to it. But if you have a published work that's available to other people, you need to protect your rights and so you need to be on the lookout for people who have made copies of it or are otherwise using it in a way that violates copyright law. And how diligent you want to be depends a lot on, you know, how much time you have and how valuable you think that it is. Uh but that would be the big thing to do
22:39 during life is to register the copyright and just every so often take a look around and see if somebody is infringing. In our society today, I think the odds are pretty good if you have it out there that there's probably somebody who's trying to infringe. So you'll probably find something if you care to look and then you need to decide if it's worth the effort of going after them.
23:00 >> Right. Now, let's let's take music for example. So, you know, there are you know, the the two major um um uh I guess the rights organizations is that there's um ASCAP and BMI. Um is it sufficient to register a work with one of those two organizations in terms of protecting one's copyright or it you know, should does it need to be uh registered with the Copyright Office as well? You know, and and how does, you
23:37 know, being registered with with let's I'm an ASCAP member. Um so, I'll I'll use ASCAP just because for that for that reason. Um how does that um help or, you know, potentially hinder um you know, tracking if uh you know, a a copyright um is is being infringed?
24:01 >> So, ASCAP and the Copyright Office are doing two different things. The Copyright Office, they are recognizing that you have a copyrighted work and you are therefore given copyright protection for that work. ASCAP is a licensing company. So, when you register with ASCAP, you are telling them that they have permission to license the work out to other people and give other people permission to use that work. And that might mean that ASCAP could go after
24:36 infringers for you. It might not. You want to look at that agreement that you're signing with ASCAP to see who is the person that is in charge of finding whether someone is illegally using that song.
24:49 >> Okay. So so um I I guess if a if a work is not registered with the copyright office, does that mean that no copyright exists or
25:06 >> That's not what it means, no. So, you have a copyright as soon as the work is created. You don't have to do anything to have a copyright, but the government is not going to recognize your copyright until you've registered. So, what that means is if you find an infringer and you tell them you're infringing, "Stop it." and they say, "Well, make me." Uh [snorts] then you can't do much of anything until you have that registration. You are not even allowed to file in the courthouse until you have that registration in your hands. That was a case that was decided
25:42 a few years ago by the Supreme Court where uh that question came up in the course of litigation and they said, "Yeah, you have to register first. Until you have that certificate in your hands, you can't even file the lawsuit." Wow. I did Yeah, that's that's I did not know that. That's interesting.
26:00 >> Yes, yes, that's relatively recent. Within the last few years they made that decision, but uh yeah, that's now the law of the land. You have to register first before you can file an infringement lawsuit. And so, if you're registered shortly after publication, then you saved yourself a lot of time and you can get to the courthouse a lot faster.
26:22 >> So, it's it's interesting because, you know, for example, a platform like YouTube is very uh strict about not using content from another creator.
26:34 >> Mhm.
26:34 >> Um and and and in fact, um if they think you've done that, um for example, they will not let you monetize um your own content and or if you have, they'll give the money to the person from whom, you know, the material has been taken. Um and yet I would venture to say, I don't know this for a fact, that the vast majority of content on YouTube is not registered with the copyright office.
27:02 >> Yes, I I would agree with that assessment. I think most of it has not been registered, but there is something called the Digital Millennium Copyright Act or the DMCA. And that was, I think 98 was about the time that came out. The part that I am referencing is saying that if a website owner wants to avoid being sued for infringement for the content of its website for something somebody else posted there, they have to remove it as soon as they are notified of that
27:38 infringing content.
27:40 >> Mhm.
27:40 >> And every website has to set up a system for people to be able to do that. And so, YouTube, of course, has that system where you report that someone has used your and they'll take it down pretty much immediately. And then, if the person objects, there's a process to get it put up, but essentially at that point, then you get into the whole issue of whether there actually is a copyright and whether there actually was infringement. But that is the system that's currently in place to monitor these things. And at least in this that sort of situation,
28:17 whether you actually have a formal copyright is something that kind of gets kicked down the road.
28:22 >> Mhm. Okay. I guess since this is happening between private parties because I'm just using YouTube as as as an example because I I happen to know there a little bit about their system. YouTube is a private company. People posting content are private private individuals or private companies. So, um this is not a court proceeding. You know, they're they're just they have a policy about how things work on their platform. So, so I guess they don't have to necessarily require that there be a copyright. But that is that uh
28:56 >> That's correct. They their policy reigns because it's their private company, as you said. So, they run by their policy and they don't require you to show a certificate in order for you to claim that you have a copyright.
29:12 >> So, by the same token, I would guess that um you I hear this all the time from Well, not all the time, but I hear from time to time people talking about, well, you know, it it's fair use. Um like you know, someone will say, well, I you know, I took a a a a whole chapter out of a book, but it's fair use. I feel like I don't know.
29:36 >> Yeah, that one definitely comes up. Uh the thing with fair use is that there's no hard rules for when it is or is not fair use. There are guidelines. Uh there is a test that the courts will look at when they're deciding whether or not it's fair use, but you can't be 100% sure of the fact that it's fair use until the court case is over.
29:59 >> Mhm. And and how would how would or would not the issue of fair use impact, you know, again, a private uh you know, company like YouTube with respect to its moderation of what's what's on there, you know, what's on the side?
30:16 >> Again, their policies are what's going to control. Uh going back to the Digital Millennium Copyright Act, the question of fair use would be considered at that point down the road where the person whose content was taken down is objecting. When they're deciding whether or not there is a copyright and whether or not there is a violation, the question of fair use is something that's going to be considered. Again, there's no way to know for sure without a court ruling, but since the that test is known and generally available, you at least know what
30:51 factors are going to be considered. Sometimes people looking to stay out of court are just going to do their own analysis and kind of make their own decision where they might say like, "Yeah, I can't see how a court's going to decide this is fair use. We got to cave." Um versus the "I think there's a very high chance a court's going to decide fair use. We need to hold our ground."
31:11 >> Mhm.
31:11 >> [clears throat]
31:11 >> And then when you're in the middle ground, that that's the point where you're kind of on the fence about whether or not it's worth it and if you need a court to weigh in.
31:20 >> Mhm. Mhm. So, um actually, you know what? Let's let's take another break because I've I've got a follow-up question. I think the answer to this might be a little on the long side. Probate and Trust TV, your curated source for the most useful and insightful content on estate planning and trust and probate administration featuring standout professionals like Bill Gross, Paul Rabalais, James Cunningham, and yours truly. Whether you're a lawyer, accountant, real estate
31:55 professional, or working on your own succession plan, this channel helps you quickly find the clearest, most practical content YouTube has to offer. Subscribe now to Probate and Trust TV. Spend more time learning, less time searching. Oh, so my my my my kind of follow-up question is um from a planning perspective um if copyrights are generating income um
32:30 what are the kinds of issues that the planner uh um wants to take into account in you know, in dealing with the the IP and in in, you know, his or her estate plan.
32:45 >> So, I already mentioned they have to decide who it's going to go to and whether it's going to be managed by a third party or not. The other consideration that is honestly probably the most difficult part of it is how it's going to be managed cuz a lot of times copyrights require hands-on marketing in order for them to continue selling because eventually people are going to lose interest, it's not going to be relevant anymore and the revenue is going to dwindle over time. That's pretty much going to happen all it's pretty rare that that doesn't
33:21 happen.
33:21 >> Mhm.
33:22 >> So, the manager needs to continue that marketing and continue driving those sales. So, you know, that's the problem of just I give it to my kids, they'll do what they're going to do with it. Most of the time that means they're just going to let it sit, they're not going to be doing any active marketing or anything else besides collecting the checks and in that situation the royalties are going to dwindle much faster than if you had somebody that was continuing to do the work to drive the sales. So, another aspect beyond who's going to get it and
33:57 who's going to manage it is whether they want to take the time and the effort to either write down or train that manager on what they are currently doing and what the manager could be doing to keep that revenue coming for as long as possible.
34:14 >> Mhm. I could imagine a lot of complexity in that. Like, for example, if you're an author with multiple books uh, you know, I I mean, I I've been going through a phase of rereading or or rereading of reading books that were originally published in, you know, the 1930s and 1940s. There a couple of, you know, relatively well-known detective series, and I noticed in one of them, um all of a sudden in 2014, new editions of all these books came
34:50 out. And I I I haven't looked into it, but I I would be curious, you know, what was By then, the the author had passed away. Um I know his wife um suc- succeeded him, uh or at least lived, you know, longer than he did. I could imagine that there was some kind of um arrangement in his estate plan to potentially revive these books, which by, you know, by the, I think, '90s, early 2000s,
35:25 probably weren't that well-known anymore. Um but I think they've gained, you know, new prominence with with this new set of, you know, publications.
35:37 >> Yeah, so that is definitely something that could happen. There's always the chance that the management will cause the copyrights to be more valuable after your passing than they were before. Like, for example, Stieg Larsson, the author of The Girl with the Dragon Tattoo, he actually hadn't even published the books before his passing. Uh they were published posthumously and proved to be a massive, massive success, which he would not have known. Uh which was uh probably why he didn't have an estate plan, and that caused other problems. But, uh yeah, there there is that possibility
36:13 that you could set something up in your estate plan or simply choose the right person who will know what to do to revive a trademark that was flagging before your passing.
36:24 >> Well, and so, that that that actually is the perfect dovetail to my my next question is what if, you know, there's you know, and now the the the creator has died, but they they never exploited their work. Um and I don't know, maybe they have, you know, 10 books that they wrote and maybe one of the children always felt like, you know, "Gosh, Mom. Gosh, Dad. You should You know, you should publish these." Um you know, how might one deal with that from the standpoint of administering an
37:00 estate where there is uh copyrighted material, but it hasn't previously been uh you know, marketed or or exploited?
37:12 >> That question has come up in my practice. I've had that a time or two where someone has reached out to me because there are copyrights in an estate for an unpublished work and the family really wants to publish it. So, the on the administrator's side, the first question is, "Well, who owns the copyright now?" So, deciding who is the new owner is the first step and then, if the new owner is also the person who wants to publish, you're pretty much golden. All you have to do is transfer the copyright to the
37:47 new owner and they can take it from there and do whatever they want to do. The problem would come up like, let's say there are four children. So, the four children would each be co-owners of the copyright and two of them want to publish and the other two don't. You know, that that's where you run into problems where now you got to figure something out.
38:10 >> Yeah, okay. That makes sense. So, I mean, presumably when the person dies, their estate now owns the copyright until they're distributed until there's a distribution of the assets from the estate, right? So, uh I I could imagine a scenario where I don't know, there's some kind of negotiation and the two who want to publish it say, "Okay, well, we want the works and and in exchange for that, we'll let you have this other thing." I mean, is that our our our How would arrangements like that, how could they be worked out?
38:43 >> You could absolutely do something like that where you could say, "As long as the siblings that don't want to publish is more of a I don't want to be put through the effort." Then, yeah, you could arrange that where you need to determine the value of the copyright, which let's face it, if it's not published, the value would be pretty de minimis.
39:03 >> Right.
39:04 >> Uh and you would give them some form of compensation in exchange for that. It's when they say, "No, we don't want you to publish cuz, I don't know, it's a memoir and it says bad things about me."
39:14 >> Uh-huh.
39:14 >> Uh you know, then then you have a a really big issue because there it's not just that they don't want to do the work, they're actually opposed to it and then you have more of a family dynamics problem that you have to deal with in order to proceed to publication.
39:28 >> Yeah. I I don't mean to put you on the spot, but have you ever dealt with that particular situation?
39:33 >> Not directly. Uh I had one time where there was someone where one sibling was against it but not quite to that extreme and they just mentioned that they were going to work it out. Uh I don't recall if they got back to me with what they ended up doing with that one sibling. They were planning to do a buyout like you suggested.
39:53 >> Okay. Okay. So, it was it wasn't a case of you can't print this because I look like a total jerk and and I'm going to fight you tooth and nail and you know, presumably deplete the assets of the estate, you know,
40:09 >> [laughter]
40:09 >> rather than let this be published or something.
40:11 >> Yeah, I haven't had a case where it's been that extreme. Yeah, the most was that they're kind of against it and the other people were pretty sure that they could talk to them and get to a point where they could satisfy them, make them go away, so that the ones who wanted to publish could proceed to do what they wanted.
40:30 >> Now, now in terms of filing with the copyright office, let's say that for whatever reason, maybe because they weren't going to, you know, market it, etc., you know, the work was not uh filed with the copyright office. What would an heir do who now, you know, now they've inherited this copyrighted material? Um what would they do with respect to registration? Is is there, you know, a certain time For example, is there a certain time period after a work is completed where if it's not registered, it's not eligible to be
41:06 registered, you know, those kinds of things?
41:08 >> I just had that question come up where a friend of mine who's a book designer reached out to me in a panic because they saw a podcast where the person says you have to register within 90 days of publication, and they I have these copyrights that I've neglected to register that are way past that date. What do I do? And I explained her, "No, no, the 90 days after publication, that is the ideal window that you want to register because if you do it within those first 3 months, then you can get statutory
41:43 damages in an infringement lawsuit. What that just means an extra fine, that's just a punishment as opposed to tied to the level of damage. And [clears throat] if it's within those first 3 months, it doesn't matter when the infringement started, you can still get the statutory damages. If it's after the 3 months that you registered, and then it if they were infringing before you registered, you only get the statutory damages from the time of registration on.
42:10 >> Okay.
42:11 >> Uh so, it's ideal to be registered before the infringement starts. Uh, so, the 90-day window is the ideal, but there is no hard deadline. There is no point where the Copyright Office is going to say, "Nope. Nope. You missed your window. We're not accepting this."
42:28 >> Okay. So, the So, the heirs then an heir could file for a copyright after you know, being having that asset distributed to him and and he can go on from there.
42:39 >> Yeah, absolutely. The copyright application actually has a separate entry for the author and for the owner. So, they would put down the person they got it from as the author, and they would put themselves down as the owner or owners, and then they'll Copyright Office will ask how you came to acquire it. Uh, which which is a simple thing. Uh, I don't think they even require proof. They just need to know by what method you obtained it.
43:06 >> Right.
43:07 >> Uh, you can proceed from there and fill out the whole rest of the application the way that the author originally would have.
43:12 >> Mhm. And um Oh, shoot. I I lost the question I was just going to ask you. Um does it make any difference if a copyright is held by, you know, a natural person as opposed to, you know, a business, a corporation, or an LLC, or something like that? How do How might that impact um either the planning issues or the the administration issues, the you know, the potential for exploiting it?
43:44 >> Are you asking about the corporation as the owner or the corporation as the author?
43:53 >> Well,
43:54 >> [laughter]
43:55 >> I wasn't thinking of that distinction, to be honest.
43:58 >> Okay. So, the Yes, my answer will change depending on which one you're asking about. So, I'll start with
44:03 >> both.
44:04 >> [laughter]
44:05 >> I'll start with owner cuz I think that's what you were going for. And if the owner is a corporation, it doesn't matter. They can exercise all the same rights as an individual could. The owner is the owner, regardless of whether they are a natural person or a legal entity.
44:21 >> Okay.
44:22 >> Uh for the author, you know, a corporation could be the author if it was a work made for hire. You know, it was created by an employee in the course of their employment, or if they hired an independent contractor to create it for them. So, a work for hire work, the corporation could be the author, and the impact that that has is it would affect the duration of the copyright. Because if a natural person is the author, then it's life of the author plus 70 years. Obviously, that doesn't work for a corporation, because they they don't have a date of death or a
44:58 specific length of time that they would be expected to be around for. So, when a corporation is the author, it's 95 years.
45:07 >> Oh, okay. So, this this is how the Walt Disney Company has protected Mickey Mouse for so long.
45:14 >> [laughter]
45:16 >> Like, Mickey Mouse, the original Steamboat Willie, is now in the public domain, but the rules were different back before 1978. So, that is a nuance to be aware of is life of the author plus 70 years. That applies to anything that was created 1978 or later. Uh before that, with the different rules, it's now a flat 95 years. It doesn't matter who the author is for those pre-1978 works.
45:43 >> I see. Okay. Interesting. Interesting. Um so, we're we're we're we're getting we're getting close on time here. So, um I guess you know, from your perspective, um what really in in this arena, what do people really need to take away from from today's show so that they you know, deal with copyrights and and and trademarks
46:19 properly or effectively. What should they be keeping uppermost in their minds?
46:24 >> So, I would say the takeaway questions or points from this would be you know, first of all, is your IP valuable enough for you to take those extra steps to protect it and if it is, then you need to decide the questions that we talked about. Is it worth putting it into my will and trust and if you feel that it is, then I would suggest talking to an attorney and they can work out the finer details of what you want to accomplish and how you can accomplish it.
46:56 >> Okay. Very good. Well, Kelly, I
47:00 >> [laughter]
47:02 >> you labeled yourself as a nerd but with this kind of stuff, I feel like I'm a nerd too. I I don't know if I mentioned this when we when we did the the first show together but out of college, I clerked for an attorney and one of the associates did IP law and I just found it it's fascinating. It's very intellectual, very complex but also it's dealing with often times some of the most beloved you know, things out there and and and so it's it's I it's just such an important aspect of you know, estates and trusts and such.
47:38 So, really appreciate you spending this time with me today and and helping helping all of us learn more about it.
47:45 >> Absolutely. Thanks again. It was a pleasure talking to you today.
47:49 >> Great. I'll have you hang on just one minute. I'm going to do a quick wrap-up here. So, for those of you who are dealing with these kinds of issues or you maybe you you you need more information about it. Look right down below at the show notes and you'll see all of Kelly's contact information. You can go to her website and get information about her practice, but you can contact her. I'm sure she'll be happy to speak with you and and listen, you can tell by the the level of her expertise, you are not going to find
48:24 anyone out there better than Kelly to help you with these kinds of issues. She She The fact that I had her back, do I need to say that she has my 100% endorsement?
48:34 >> [laughter]
48:36 >> I had to do a little bit of begging. She's very busy.
48:40 >> [laughter]
48:43 >> It was less begging and more that I didn't see your original email.
48:47 >> [laughter]
48:49 >> But I appreciate you following up with me.
48:51 >> [laughter]
48:51 >> So, real quickly, schedule of shows. Mondays, like today at 10:00 a.m. Pacific time, Trusts and Estates Weekly. Tuesdays at 10:00 a.m. Pacific time, Business Lessons from the Military. Wednesdays at 10:00 a.m. Pacific time, People Making Money. And then every other Thursday at 5:00 p.m. Pacific time is my show Jigger's Displace. We have a cocktail and a schmooze. We sit back, talk about all the non-finance related issues and as we head toward the end of the week. So, lots of opportunities for us to be together during the week. So, I
49:28 thank you all very much for joining us today. Kelly again, thank you. Thank you. Thank you so much for being my guest. And that just leaves me to sign off as I always do, reminding you, Marie darling, you are my bell. Courage at all times, my friends.